The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
03-796
MARY L. BROWN, ET AL.
VERSUS
AVOYELLES PARISH SCHOOL BOARD
**********
APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NUMBER 2000-1321-B
HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE
**********
BILLIE COLOMBARO WOODARD
JUDGE
**********
Court composed of Billie Colombaro Woodard, Glenn B. Gremillion, and Elizabeth
A. Pickett, Judges.
AFFIRMED.
J. Isaac Funderburk James T. Lee
Funderburk & Herpin Assistant District Attorney
Post Office Drawer 1030 Post Office Box 1021
Abbeville, Louisiana 70511-1030 Bunkie, Louisiana 71322
(337) 893-8140 (318) 346-6616
Counsel for Plaintiffs/Appellants: Counsel for Defendant/Appellee:
Mary L. Brown, Walter M. Brown, Avoyelles Parish School Board
Philip J. Coco, Samuel Curtis
Conner, Adam Desselle, Estate of
Irvin Dubroc, Lynn Fogleman,
Willis Leo Fuqua, Billy R.
Hendrix, Roosevelt Joshua, Linus
M. Juneau, Burnell F. Lemoine,
Ronald J. Lemoine, Lamar R.
Marcotte, Jr., and George G.
Voinche
WOODARD, Judge.
Former employees of the Avoyelles Parish School Board appeal the trial court’s
grant of an exception of prescription, dismissing their suit. We affirm.
*****
Fifteen former employees of the Avoyelles Parish School Board (Board) filed
an action individually and on behalf of other former employees similarly situated
against the Board. The Board filed an exception of prescription before class
certification.
The Plaintiffs claim entitlement to back wages and penalty wages. Specifically,
they maintain that they are entitled to be compensated for accrued “annual leave” that
they had not taken by the time they retired.
The trial court granted the Board’s exception of prescription and dismissed the
Plaintiffs’ claims. They appeal this ruling.
*****
STANDARD OF REVIEW
Where the parties introduce evidence to support or controvert an exception, the
trial court’s factual determinations based on such evidence are subject to the manifest
error standard of review.1 However, if the trial court made a legal error which
interdicted the fact-finding process, we conduct an independent review of the record.2
We find that the trial court made a legal error which not only interdicted the
fact-finding process but eliminated it, altogether. It determined that Wyatt v. Avoyelles
Parish School Board3 precluded its consideration of the doctrine of contra non
valentum in the instant case. Specifically, it stated:
1
Parker v. Buteau, 99-519 (La.App. 3 Cir. 10/13/99), 746 So.2d 127.
Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d 742,
2
rev’d in part, on other grounds, 96-3028 (La. 7/1/97), 696 So.2d 569.
3
01-3180 (La. 12/4/02), 831 So.2d 906.
1
I disagree with the ruling of The Supreme Court in the Marcotte,
Wyatt and Seiss [consolidated] cases, as to the issues that were reversed
....
However it is the higher court, the court of last opinion, and I must
follow their ruling.
ALSO, I must follow their ruling on the PRESCRIPTION ISSUE.
The current state of the law, as announced by The Supreme Court, says
it’s a three (3) year date, which becomes exigible or due upon the date
of retirement, period.
We agree that the facts in Wyatt were strikingly similar to the facts in the case
at bar. However, the issues were not; therefore, Wyatt does not govern. In Wyatt, the
plaintiffs, also, were former employees of Avoyelles Parish School Board. They, too,
claimed back wages for unused and uncompensated “annual leave” at the time of their
retirements. The supreme court found that “the annual leave earned during the last
year of employment was exigible or due upon the date of each plaintiff’s retirement.”4
Notwithstanding, the plaintiffs in Wyatt filed their suit within three years of
their retirements. Thus, the supreme court did not have to address whether contra non
valentum applied. The trial court erred in finding that Wyatt mandated that it grant the
exception. Accordingly, we decide the prescription issue de novo.
PRESCRIPTIVE PERIOD
Normally, the party pleading the exception of prescription bears the burden of
proving it.5 However, when a claim is prescribed on its face, the burden shifts to the
relator to show that the exception should not be maintained.6
Louisiana Civil Code Article 3494 provides a three-year prescriptive period for
wages claims. The Plaintiffs retired between June 30, 1982 and June 30, 1995. Thus,
the wages were due on the dates of their retirements, respectively.7 They filed this
claim on December 9, 2000, more than three years after their claimed wages became
4
Id. at 915.
5
Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992).
6
Id.
7
See La.R.S. 23:631. See also Wyatt, 831 So.2d 906.
2
due. Accordingly, the Plaintiffs’ claims are prescribed on the face of their petition,
shifting the burden to them to show otherwise.8
At the trial on the exception, Plaintiffs’ counsel attempted to introduce some of
the Plaintiffs’ affidavits in which each stated that s/he did not know s/he might have
a claim against the board until April of 1998. The trial court admitted this evidence
subject to the Board’s counsel’s objection. It questioned the admissibility of these
affidavits through which the Plaintiffs sought to enter new evidence, since in their
original petition, Plaintiffs did not make any assertions regarding the suspension of
prescription or their inability to bring their claims within the prescriptive period. We
need not determine the correctness of this admission, as we find below, that the
application of contra non valentum cannot save Plaintiffs’ claims from prescription.
Thus, even with the benefit of this evidence, Plaintiffs did not adequately rebut the
presumption that their claims had prescribed.
CONTRA NON VALENTUM
Contra non valentem agere nulla currit praescripto is a suspensive theory,
meaning “prescription does not run against a party unable to act.”9 There are four
general instances in which we apply the doctrine:
(1) when there is a legal cause that prevented courts or their
officers from taking cognizance of or acting on the plaintiff's action;
(2) when there is a condition coupled with the contract or
connected with the proceeding that prevent the creditor from suing or
acting;
(3) when the debtor himself did some act that effectually
prevented the creditor from availing himself of his cause of action; and
8
See Spott, 601 So.2d 1355.
9
Picard v. Vermilion Parish Sch. Bd., 00-1222, p. 3 (La.App. 3 Cir. 4/4/01), 783
So.2d 590, 594, writ denied, 01-1346 (La. 6/22/01), 794 So.2d 794 (quoting Wimberly
v. Gatch, 93-2361, p. 4 (La. 4/11/94), 635 So.2d 206, 211).
3
(4) when the cause of action is not known or reasonably knowable
by the plaintiff, even though his ignorance is not induced by the
defendant.10
Plaintiffs urge that this last instance applies to them. Under this theory,
prescription does not begin to run until a plaintiff has a reasonable basis to pursue a
claim against a specific defendant.11 Even though the Plaintiffs were aware that they
had accrued annual leave, which they had yet to take when they retired, they assert
that they had no reason to question the lawfulness of the Board’s policy not to
compensate them for such unused annual leave. However, in April of 1998,
Forethought Consulting, Inc., issued a “policy alert,” apprizing employers of a 1997
amendment to La.R.S. 23:631. This statute provides, in pertinent part:
A(1)(b) Upon the resignation of any laborer or other employee of
any kind whatever, it shall be the duty of the person employing such
laborer or other employee to pay the amount then due under the terms of
employment, whether the employment is by the hour, day, week, or
month, on or before the next regular payday or no later than fifteen days
following the date of resignation, whichever occurs first.
(Emphasis added.)
The 1997 amendment added section (D) which states:
D(1) For purposes of this Section, vacation pay will be
considered an amount then due only if, in accordance with the stated
vacation policy of the person employing such laborer or other employee,
both of the following apply:
(a) The laborer or other employee is deemed eligible
for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or
been compensated for the vacation time as of the date of the
discharge or resignation.
Hendrick v. ABC Ins. Co., 00-2403, p. 10 (La. 5/15/01), 787 So.2d 283, 290
10
(quoting Corsey v. State, Through Dep’t of Corr., 375 So.2d 1319, 1321-22
(La.1979)).
11
Picard, 783 So.2d 590.
4
(2) The provisions of this Subsection shall not be
interpreted to allow the forfeiture of any vacation pay
actually earned by an employee pursuant to the employer’s
policy.
(Emphasis added.)
Plaintiffs allege that the policy alert was the first indication to them that they
may have a cause of action against the Board, and its issuance date should, therefore,
serve as the date prescription began to run against them. We do not agree.
Louisiana Revised Statutes 23:634(A) provides:
No person, acting either for himself or as agent or otherwise, shall
require any of his employees to sign contracts by which the employees
shall forfeit their wages if discharged before the contract is completed or
if the employees resign their employment before the contract is
completed; but in all such cases the employees shall be entitled to the
wages actually earned up to the time of their discharge or resignation.
(Emphasis added).
Even before the 1997 amendments to La.R.S. 23:631, there was a long history
of jurisprudence which considered accrued vacation time to be equivalent to wages.12
As the policy alert recognized, the “added statutory provision [La.R.S. 23:631(D)] is
apparently in keeping with recent court cases, stating that unused vacation pay is
considered wages and equivalent to amount then due under terms of employment.”
Arguably, this jurisprudence, alone, called into question whether certain vacation
policies such as “use it or lose it” policies were lawful or, instead, amounted to an
impermissible forfeiture of wages under La.R.S. 23:634.13
12
See, e.g., Barrilleaux v. Franklin Found. Hosp., 96-343 (La.App. 1 Cir.
11/8/96), 683 So.2d 348, writ denied, 96-2885 (La. 1/24/97), 686 So.2d 864;
Macrellis v. S.W. La. Ind. Ctr., 94-1155 (La.App. 3 Cir. 5/3/95), 657 So.2d 135;
Lambert v. Usry & Weeks, 94-216 (La.App. 5 Cir. 9/14/94), 643 So.2d 1280; Potvin
v. Wright’s Sound Gallery, Inc., 568 So.2d 623 (La.App. 2 Cir. 1990); Garrison v.
Burger King Corp., 537 So.2d 834 (La.App. 5 Cir. 1989); Blankenship v. S. Beverage
Co., Inc., 520 So.2d 440 (La.App. 1 Cir. 1988); Pohl v. Domesticom, Inc., 503 So.2d
125 (La.App. 5 Cir.),writ denied, 505 So.2d 1148 (La.1987); Lee v. Katz & Bestoff,
Inc., 479 So.2d 459 (La.App. 1 Cir. 1985); Howser v. Carruth Mortg. Corp., 476
So.2d 830 (La.App. 5 Cir. 1985).
13
See Picard, 783 So.2d 590.
5
However, in Picard,14 this court found no manifest error in the trial court’s
decision that such jurisprudence was not sufficient to put the plaintiffs on notice that
they had a claim. Rather, we found that the plaintiffs’ inaction in Picard was
reasonable because neither the supreme court nor this circuit had squarely addressed
“whether an employer may refuse to give compensation for accrued but unused
vacation time,” until we rendered Baudoin v. Vermilion Parish School Board.15 In
that case, we found that a retired employee may be entitled to compensation for
accrued unused leave upon retirement, despite the employer’s unwritten policy not to
do so.16
In Picard, we upheld the trial court’s finding that the employees were
reasonably prevented from realizing that they had a reasonable basis for pursuing their
claims until we decided Baudoin. However, implicit in this holding is that the
Baudoin decision did provide sufficient notice to the plaintiffs. Likewise, the Baudoin
decision provided sufficient notice to the Plaintiffs in the instant case; it provided
them with a reasonable basis to pursue their claims for wages. We rendered Baudoin
in April of 1997 and the supreme court denied writs in June of 1997. Thus, even
under contra non valentum, prescription began to run against the Plaintiffs in June of
1997 and ended in June of 2000.
“Louisiana jurisprudence considers contra non valentum to be ‘an exceptional
remedy . . . in direct contradiction to the articles in the Civil Code’ which must be
strictly construed.”17 Thus, we decline to stretch its application to the extent that it
would encompass the Plaintiffs’ claims in the instant case.
14
Id.
96-1604 (La.App. 3 Cir. 4/2/97), 692 So.2d 1316, writ denied, 97-1169 (La.
15
6/20/97), 695 So.2d 1358.
16
Id.
Picard, 783 So.2d at 594 (quoting Harsh v. Calogero, 615 So.2d 420, 422
17
(La.App. 4 Cir. 1993)).
6
CONCLUSION
We find that the trial court erred by not considering whether contra non
valentum prevented the prescription of the Plaintiffs’ claims. However, our
independent analysis of the doctrine’s application leads us to the same conclusion.
Thus, we affirm the trial court’s dismissal of Plaintiffs’ claims because they have
prescribed. We cast the costs of this appeal on the Plaintiffs/Appellants.
AFFIRMED.
7